Summary: Mr D complained that the Council failed for two years to provide 69 nights per year respite care for his son, Mr E. This has caused intolerable stress to the whole family and significant time and trouble for Mr D in chasing up the Council. We have found fault with the Council. The Council has agreed to pay Mr D £1500, confirm the respite provision every 2 months at Centre Z and to make every effort with Mr D, to source suitable alternatives for the remaining nights.

The complaint

1. Mr D complained that North Yorkshire Council (the Council), in respect of respite care for his son, Mr E, failed to take sufficient action to provide the allocated 69 nights after E was stopped from attending the placement following an incident in February 2020. Mr D also complains that the Council failed to invite Mr D to express an interest in reattending in September 2020 and said he would not be returning. This extended period without respite has caused significant stress to the whole family and Mr D had to take sick leave on several occasions.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Duty to meet assessed care needs

5. The Care and Support (Eligibility Criteria) Regulations 2014 state that where a Council has determined a person has eligible needs it must meet these needs, subject to meeting the financial criteria.

What happened

6. Mr E has several physical and mental health conditions requiring care and supervision. He was attending a day centre (Centre Y) during the week and overnight respite care for 69 nights per year at Centre Z. Mr D, his father, works full-time and Mrs D, his mother, has a long-term health condition.
7. At the end of January 2020 following an incident at Placement Z where he injured several members of staff, Centre Z said it was suspending the placement until further notice. He was also unable to attend Centre Y.
8. In February 2020 the Mr E’s social worker (SW) referred Mr E to the community learning disabilities team (CLDT) to discuss access to support and additional services. SW also discussed Mr E returning to Centre Y with two support workers once a risk assessment was completed. Centre Z said the placement remained suspended until Mr E’s behaviours had been addressed. It said protocols would need to be place and the risk of behavioural challenges significantly reduced before Mr E could resume respite stays.
9. The family cancelled one appointment with CLDT but met with them in early March 2020. Mr D met with the Mr E’s NHS neurologist who said he was not going to change Mr E’s medication as his epilepsy was stable. The family also met with a private neurologist who recommended an alternative medication.
10. In March 2020 Mr D stressed to SW that Mr E wanted to go back to Centre Z for respite and would not be able to cope with a change of placement. Mr D did not receive an invite to a meeting at Centre Z to discuss the possibility of Mr E returning. At the meeting Centre Z confirmed the placement remained suspended but if it did consider a return, Mr E may need 2:1 support along with a review of his needs assessment and a behavioural support plan.
11. After the meeting SW said to Mr D that CLDT had recommended an ambulatory assessment to monitor his epilepsy. Mr D said he had explained that Mr E would not tolerate this type of assessment and the CLDT had accepted his view. The Council said it also needed to do a reassessment of his needs, CLDT needed to complete a behaviour support plan and a continuing healthcare (CHC) review was also required with the NHS.
12. Mr D agreed to accompany Mr E to a reassessment of his needs at the beginning of April 2020. The Council spoke to Mr E’s epilepsy nurse who said that Mr E’s epilepsy was stable, and his new behaviour was unrelated to his epilepsy. The nurse declined to attend a multi-agency meeting.
13. COVID-19 lockdown restrictions started on 26 March 2020. On 30 March 2020 Mr D spoke to SW and they agreed to cancel the re-assessment in the light of the lockdown restrictions. They felt it would be difficult to continue with support planning for Mr E to return to Centre Z, until they knew if it was to remain open and how much support Mr E would need to attend. SW said she would contact Mr D in a few weeks to discuss when the re-assessment could take place, but they noted this may not be possible for some time due to the lockdown restrictions.
14. Mr E was at home throughout the lockdown period. Initially he had some support from a care agency to go out in the car for short trips. The care agency offered some support during April and May, but it was limited to local walks due to the lockdown restrictions. Mr D said care at home for Mr E had not worked very well and he did not accept the offers.
15. SW sent a keeping-in-touch email to Mr D on 29 April 2020. She did not mention the assessments or respite care. Mr D informed her that the family had been unwell with COVID19. They had no support for Mr E. SW said as soon as the restrictions lifted, she would contact Mr D regarding the respite care.
16. By 4 July 2020 many of the lockdown restrictions had been lifted. Centres Y and Z remained closed. Centre Z was repurposed as a discharge hub to support people being discharged from hospital in line with the COVID-19 hospital discharge requirements. The care agency continued to offer some support hours during the day, but Mr D was waiting for Centre Y to open.
17. There is no record of any further contact from the Council until early October 2020 when Mr D contacted SW to ask about the possibility of Mr E returning to the day centre, Centre Y.
18. Centre Z reopened in October 2020 on a reduced basis. Prior to this it had contacted previous service-users to see if the wished to resume their placements. Mr E was not included in this contact. The Council says this was because Mr E was still suspended from Centre Z.
19. SW took part in, with Mr D, a CHC review. As they all agreed Mr E’s needs had changed, they would need to undertake a further review. Mr E was still at home all the time with no external support.
20. In early November 2020 Mr D contacted SW to say the family desperately needed some respite, particularly at night. The care agency support was due to restart during the day, but Mr E was keeping his parents up every night. SW suggested arranging someone to come into the home to support Mr E at night, but Mr D explained this would not work as Mr E would just wake up his parents if they were in the house. SW agreed to explore other respite options and chase up the CHC review. She did this the same day and obtained authorisation from her manager for urgent respite to be sourced.
21. Centre Z said they were currently operating reduced opening hours and they were not accepting people with additional support workers from other agencies so they could not help Mr E at this time.
22. Mr E started back at Centre Y on 7 December 2020. He also had a psychiatry review which noted some improvement in his behaviour. SW made an appointment to start a re-assessment on 20 January 2021.
23. Centre Y closed again on 5 January 2021 due to the new lockdown restrictions.
24. SW carried out a virtual re-assessment on 20 January 2021. Mr D noted some improvements in Mr E’s behaviour and said he would contact the care agency to see if they could resume twice-weekly visits to go for a walk with Mr E. He also said he was keen on discussing with other families setting up a supported living house.
25. On 1 March 2021 Mr D chased up SW regarding Centre Z. SW said Mr E could not attend Centre Z. So far the Council had not been able to find any alternatives, mainly due to the need for Mr E to have 2:1 support which meant external workers in buildings which was not currently allowed. Mr D challenged the need for 2:1 support and said it was not necessary: the care agency just provided one worker and no assessment had been done which said he needed 2:1 care.
26. Mr D chased SW again in early April 2021 regarding resumption of the respite care. SW said the Council had been unable to find anything, largely due to the lockdown restrictions. Mr D expressed his unhappiness at the lack of progress and did not understand why Mr E could not go back to Centre Z. He again said the suggestion that Mr E needed two support workers was unreasonable.
27. SW again referred an urgent request to the brokerage team to find some respite care. She discussed the case with her manager and another senior officer. They agreed to refer Mr E for some speech and language therapy (SALT) and to discuss the case again with Centre Z. SW also discussed Mr E with the CLDT. They advised that Mr E was still open to their team, that Mr E had received a large amount of SALT already and that Mr D had not responded to communication with the team. SW said that before Mr E could return to Centre Z a positive behaviour plan should be in place.
28. In April 2021 SW advised Mr D that Mr E could not return to Centre Z due to the reduced numbers arising from the COVID-19 restrictions. They would reconsider the decision in July when hopefully all the restrictions would be lifted. She also said the assessment in April 2020 had been cancelled by Mr D. She said she had discussed alternative respite provisions with Mr D including respite within the home (Mr D said this would not work because Mr E would simply ask for support from them), respite in a care home (they both agreed this was unsuitable for Mr E) and supported living (SW felt they should consider this again)
29. Mr E started to attend Centre Y again on 23 April 2021 with one support worker. The CHC review was completed on 7 May 2021: changes in need were noted and joint funding agreed including the second carer at Centre Z whenever the placement resumed.
30. Mr D asked SW to look into a respite facility he had found. SW said the placement was waiting CQC registration before they could provide personal care support.
31. In May 2021 the CLDT provided an update. They did not think a positive behaviour support plan would be appropriate because since the incident in January 2020 there had been no behaviours to assess and there had never been any incidents at Centre Y. He said it was up to the relevant services to complete risk assessments and management plans and it was discriminatory for services to insist on positive behaviour plans before allowing access to respite care.
32. At the end of June 2021 SW made further enquiries with Centre Z about the need for 2:1 support. They confirmed that they would require two support workers for the first four to six hours of each stay and would be in touch with the family within the next couple of weeks for a daytime introduction before resuming overnight stays.
33. SW carried out another assessment on 14 July 2021. She concluded there was a clear need for 69 nights respite care and Mr E had no need for 2:1 support. Mr D contacted the Council on 23 July 2021 asking for emergency respite care as the situation had reached crisis point. Nothing was immediately available or possible due to the need for COVID tests and to arrange support. Mr D sought help from an out-of-hours GP service.
34. Centre Z offered a visit at the end of July 2021, but Mr E could not attend because he was self-isolating before a hospital stay.
35. In August 2021 the SW suggested putting some support in at home so Mr and Mrs D could go away. Mr D did not respond to this. SW also questioned whether Mr D was still using the support offered by the care agency to take Mr E for walks and other activities pre-COVID. He said not currently due to COVID difficulties and Mr E’s behaviour at Centre Y which recently had been challenging. SW continued to look for alternative respite provision. Mr D had to take time off from work again due to the impact on him of Mr E being at home all the time.
36. Centre Y suspended the service following incidents with Mr E. The Council held a professional meeting on 10 August 2021 where it was agreed that assessments (including a positive behaviour support plan) needed to be done before Mr E could return to Centre Y. Centre Z agreed to a gradual transition offering tea-time visits to Mr E.
37. Centre Z offered a few tea-time visits in September and talked about a possible overnight stay in October. But this did not happen. One tea visit occurred at Centre Z in October and three more in November 2021.
38. Five multi-agency meetings were held between August and December 2021. In November Centre Z decided it had enough information to form a risk assessment and positive behaviour support plan.
39. In response to my enquiries the Council says it has offered Mr E an overnight stay in February 2022, but the Council is unlikely to be able to offer 69 nights of respite. It says this is due to the exceptional staffing challenges faced by social care leading to a reduction in the operating hours of Centre Z. It says it has offered alternatives to Mr D, including direct payments and other alternative external provision (I have not seen evidence of this). But up to now he has not wished to accept alternative placements.

Analysis

40. The Council has a duty to meet Mr E’s assessed needs. The Council has assessed that he requires 69 nights per year of respite care to meet his needs. The Council has not provided any overnight respite care since January 2020.
41. It is my role to decide on the balance of probabilities if this failure is fault which has caused Mr E and his family injustice.

Centre Z

42. I accept that the incident in late January 2020 was serious and concerning and that the Council has a duty of care to its staff. So, I consider it was reasonable for the Council to initially suspend the service and look at what steps it could take to protect the staff at Centre Z while ensuring Mr E’s needs were met. It decided that it needed to reassess Mr E’s needs, review his medical needs, produce a behaviour support plan and review his CHC needs. The review of his medical needs was complete by March 2020 but nothing else was achieved before COVID-19 intervened and the lockdown restrictions were imposed. I accept this was an exceptional situation which severely impacted the Council’s ability to carry out assessments and provide respite care as it had done previously. I also recognise it placed an enormous strain on Mr and Mrs D as no support could be provided either inside or outside the home.
43. However, I note that the lockdown restrictions were largely lifted by July 2020. Although Centre Z remained closed to its previous service users as it was being used as a discharge hub, I see no reason why the Council could not have started the assessments and plans (by virtual means) necessary to enable respite to resume once Centre Z was able to open again. But the Council made no contact with Mr D until he requested help in October 2020 and then did not arrange an assessment until January 2021. This was fault. It meant Mr E missed out on any consideration that he could return to Centre Z in October 2020 and delayed further attempts to provide a phased return.
44. One key issue which remained an obstacle to Mr E returning to Centre Z was the view that Mr E required 2:1 care. This was first raised by Centre Z in March 2020 but the Council did not consider this issue as part of an assessment until July 2021 when it concluded he did not require 2:1 care while at Centre Z or any other respite provision. However, this was used as a reason why he could not return to Centre Z for many months. I accept that Centre Z was not available to Mr D from March to October 2020 and January to March 2021 due to the lockdown restrictions, but the failure to carry out an assessment at an earlier point meant Mr E missed the opportunity to return to Centre Z in October 2020 and this delayed his return in 2021, causing intolerable stress to Mr and Mrs D.
45. I also consider there has been a lack of clarity over what assessments are required for Mr E to return to Centre Z. For example a positive behaviour assessment has been brought up on several occasions as a requirement but then no progress was made in formulating one until late in 2021 and during this period doubt was cast whether one was required (by CLDT in May 2021). I consider this was fault which added to the delay and uncertainty around meeting Mr E’s assessed needs.

Alternative provision

46. The Council said it had offered Mr D alternative provision which he has refused. I disagree. The evidence provided shows that very few suitable alternatives have been provided in two years:
• SW agreed that traditional forms of respite in residential care centres were unsuitable for Mr E.
• Brokerage have been unable to find any suitable placements who would accept Mr E since November 2020 when concerted efforts were made.
• I have not seen any evidence that direct payments have been offered to Mr D. I further question how much of a solution this would provide given the complexity of Mr E’s needs.
• Support in the home while Mr and Mrs D are there does not work. Support at home while they go away is unrealistic for 69 nights a year and does not take account of Mrs D’s long-term health condition.
47. I have concluded the failure to provide any respite to Mr E over two years is fault. I recognise that SW made significant efforts to find an alternative placement and I accept the COVID-19 pandemic has made the situation much more difficult, but the Council has a duty to meet assessed need and it has not done so. At times external circumstances have prevented progress, but the Council has delayed in taking a holistic focussed approach which has exacerbated the situation.

Current situation

48. I am also concerned that the Council is not able to provide 69 days of respite care this year due to acute staffing challenges. This is service failure and ignores the ongoing and debilitating impact on Mr and Mrs D.

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Agreed action

49. In recognition of the injustice caused to Mr E and Mr and Mrs D, I recommend the Council:
• within one month of the date of my final decision:
1. pays Mr D £1500;
2. continues to work with Mr D to agree dates for respite at Centre Z every two months; and
• within two months of the date of my final decision;
1. makes every effort, in conjunction with Mr D, to provide suitable alternative venues to meet the remaining nights.
50. The Council has agreed to my recommendations.

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Final decision

51. I consider this is a proportionate way of putting right the injustice caused to Mr D and Mr E and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman